IN RE: Rachel A. ADAMS et al. (1999)

This is a proceeding brought pursuant to Article 16 of the Election Law to declare invalid the designating petition purporting to nominate Molly Klapper for the public office of Judge of the Civil Court for the 5th Municipal District in the September 14, 1999 primary.

 While, as a general rule, a candidate's designating petition will be invalidated on the ground that some signatures have been fraudulently obtained “only if there is a showing that the entire designating petition is ‘permeated with fraud’ (Matter of Ferraro v. McNab, 60 N.Y.2d 601, 603, 467 N.Y.S.2d 193, 454 N.E.2d 533;  see, Matter of Proskin v. May, 40 N.Y.2d 829, 830, 387 N.Y.S.2d 564, 355 N.E.2d 793;  Matter of Aronson v. Power, 22 N.Y.2d 759, 760, 292 N.Y.S.2d 465, 239 N.E.2d 385), when the candidate herself has participated in the fraud, the petition should be invalidated even if there is a sufficient number of valid signatures independent of those fraudulently procured” (MacDougall v. Board of Elec., 133 A.D.2d 198, 518 N.Y.S.2d 840, citing Matter of Flower v. D'Apice, 104 A.D.2d 578, 479 N.Y.S.2d 281, affd. 63 N.Y.2d 715, 479 N.Y.S.2d 982, 468 N.E.2d 1119;  Matter of Layden v. Gargiulo, 77 A.D.2d 933, 934, 431 N.Y.S.2d 118).

 The record, as amplified, demonstrates that there were many instances of “irregularities, improprieties and fraudulent practices” which permeated the designating petition (see, Mercorella v. Benza, 37 N.Y.2d 792, 793, 375 N.Y.S.2d 105, 337 N.E.2d 611).   Most significant of these improprieties is evinced by the testimony of Sharon Staton, a Commissioner of Deeds whom the court previously found took 274 otherwise valid signatures in violation of § 17-122 of the Election Law, which prohibits payment to signature-gatherers on a per-signature basis, as directed by the then-campaign manager, Allen Bortnick.   The court finds that most of Mr. Bortnick's testimony at the hearing was patently incredible.

In light of Ms. Staton's credible testimony that “we” (Bortnick's regular signature gathering crew) were told by Bortnick that the “going rate” for signatures was $1.75, it was then incumbent upon respondent to refute this testimony.   Respondent could have done so in a number of ways.   She could have produced other members of Bortnick's “crew” to testify that they were indeed paid by the hour as insisted by Bortnick.   Despite the service of subpoenas upon those persons and the direction of the court to appear, none were produced.   Mr. Bortnick could have produced the payroll records he kept to pay his “crew” and establish through this documentary evidence that the notaries public and commissioners of deeds were paid in accordance with the Election Law. Incredibly, these records were among those Bortnick claims were destroyed at a car wash and subsequently thrown out.   Notwithstanding the destruction of these records under questionable circumstances, respondent could have nonetheless reconstructed the records in part by the production of records and testimony of the campaign treasurer (and husband of the candidate), Jacob Klapper.   In spite of service upon him of a subpoena, and the direction of the court to appear, Jacob Klapper did not appear in court.

 Under these circumstances, the court must infer that each such notary, commissioner of deeds and/or campaign official would have testified adverse to respondent's position, and that the records destroyed would have supported petitioner's contentions (see, Haas v. Costigan, 14 A.D.2d 809, 221 N.Y.S.2d 138, affd 10 N.Y.2d 889, 223 N.Y.S.2d 511, 179 N.E.2d 513;  see also, Haskell v. Gargiulo, 51 N.Y.2d 747, 748, 432 N.Y.S.2d 359, 411 N.E.2d 778;  Matter of Martinez v. Olmedo, 153 A.D.2d 720, 544 N.Y.S.2d 686, lv. denied 74 N.Y.2d 609, 545 N.Y.S.2d 692, 544 N.E.2d 611).   The court thus invalidates the signatures taken by Staton, Bortnick, Elsie Ortiz, Beverly Brown, Alysande Brown and Veola Glover, totaling approximately 700 signatures, leaving respondent well below the required number of signatures.

 The court casts a similar adverse inference with respect to the actions of the candidate herself.   In light of the testimony and affidavits submitted by petitioner in which they established that some signatures taken by the candidate were then notarized by her nephew, Jeffrey Klapper, it was incumbent upon Ms. Klapper to appear and refute the testimony, particularly in the face of service of new subpoenas and the direction by this court to appear.

 The court further finds that the petitions contained various additional irregularities as well.   For example, it was established by the testimony of petitioner's handwriting expert that a number of alterations were made to the petition after the pages left the hand of the individual subscribing witnesses/notaries/commissioners of deeds.   Equally troubling is the testimony that established that in some instances alterations were initialed by persons other than the witness to the signature.   Although some such alterations may not be “material alterations” under the Election Law, when changes are made under such circumstances, they are done so in violation of the provisions of Election Law § 17-122(8), and any such signatures should be invalidated (see Sheldon v. Sperber, 45 N.Y.2d 788, 409 N.Y.S.2d 1, 381 N.E.2d 159).

 Finally, the court finds that the candidate was “inextricably intertwined in the petitioning process” and actively involved in the signature-gathering process (see, Villafane v. Caban, 104 A.D.2d 579, 580, 479 N.Y.S.2d 282).   With this in mind, inasmuch as the candidate's “sometime” campaign manager was closely involved with the illegal activity, the candidate should be charged with knowledge of the fraud (see, Matter of Buchanan v. Espada, 230 A.D.2d 676, 646 N.Y.S.2d 680, affd. 88 N.Y.2d 973, 648 N.Y.S.2d 426, 671 N.E.2d 538) and the entire petition is tainted (Matter of Flower v. D'Apice, supra, 104 A.D.2d 578, 479 N.Y.S.2d 281;  Layden v. Gargiulo, supra, 77 A.D.2d, at 934, 431 N.Y.S.2d 118).   It is, therefore, ordered that the petition herein is granted, and it is further ordered that the respondent Board of Elections of the City of New York shall remove from the ballot for the 5th Municipal District in the September 14, 1999 Primary Election the name of Molly Klapper for the public office of Judge of the Civil Court.

JAMES H. SHAW, JR., J.